Carry concealed w/Private school & business on same property

[nodeone]

I've been researching the PC and think I have this figured out, but I wanted to run it past all you fine folks here. The scenario:

Business operates a private K-12 School on the same property. Employee of the Business desires to carry concealed while on the job. Employee has obtained written permission from the School administrator to possess a firearm on School grounds in compliance with PC 626.9(a) 626.9. (a) This section shall be known, and may be cited, as the
Gun-Free School Zone Act of 1995.
(b) Any person who possesses a firearm in a place that the person
knows, or reasonably should know, is a school zone, as defined in
paragraph (1) of subdivision (e), unless it is with the written
permission of the school district superintendent, his or her
designee, or equivalent school authority, shall be punished as
specified in subdivision (f). Employee has also obtained written permission from the business owner to possess a firearm while at work.

PC 12026 offers an exemption to unlawful concealed carry in 12025 anywhere within the citizen's or legal resident's place of residence, place of business, or on
private property owned or lawfully possessed by the citizen or legal
resident

PC 12031 prohibits possession of loaded firearms in public places, which, given the nature of the business and school (and Theseus' horrible ordeal) could be argued open to the public. 12031(h) however, offers the needed exemption:
(h) Nothing in this section shall prevent any person engaged in
any lawful business, including a nonprofit organization, or any
officer, employee, or agent authorized by that person for lawful
purposes connected with that business, from having a loaded firearm
within the person's place of business, or any person in lawful
possession of private property from having a loaded firearm on that
property.

The sticky part may be the Federal GFSZ act, despite it's questionable enforceability, 18 USC 922(q). If we assume the contract between School and Business is such that it permits employees of Business to possess firearms, then 18 USC 922(q)(2)(B)(v) applies:

(B) Subparagraph (A) does not apply to the possession of a firearm-
...
(v) by an individual in accordance with a contract entered into between a school in the school zone
and the individual or an employer of the individual;

So, assuming Employee properly transported the firearm unloaded in a locked container to/from his place of business, and then strapped up once at work, it looks to me like this is perfectly within the confines of the law.

I can appreciate that there may be "encounters" with LEO because of the nature of the school, which is why I want to make sure this is air-tight. I also realize that a CCW is a cleaner solution. The possibility that one would be issued given "Good Cause" requirements is debatable, never mind the costs associated with that endeavor.

Ok, I'm off to call the Governor's hotline again... :chris:

[GuyW]

"Have" does not equal "carry"....

.

[nodeone]

I went back and re-read 12031 and the distinction between "have" in (h) and "carry" is indeed there. That being the case, Employee could in the above situation keep a loaded firearm available (insert appropriate storage method here) but only carry it during an altercation meeting the level outlined later in 12031 (immediate fear of harm). Does that sound right?

[Flopper]

"Have" does not equal "carry"....

.

Since when?

In the past, that part of the PC has always been taken to allow CCW in the home or place of business.

Has something changed?

[donstarr]

"Have" does not equal "carry"....
According to what I've read regarding the current state of the law, that's correct.

However, the result is silly (isn't that supposed to be a part of "statutory construction"? No absurd results?)....

I live in California within 1000' of a public, K-5 school...

1. I can "have" a loaded firearm on my private property, while it's lying on my front lawn, 5 feet from the public sidewalk, while I go about my business 40 feet away. A loaded firearm that is very close to (and in sight of) an actual public thoroughfare, readily accessible to anyone walking by, and not under my physical control is "OK".

2. I cannot "carry" that firearm on my person, in my front yard, 70 feet from the public sidewalk, because my front yard is a "public space". The same firearm as in #1, but under my immediate control and not visible to or available to any passerby, is "not OK".

That seems "absurd".

(I'm not debating the current state of the law - I'm merely proposing that it's ridiculous.)

[GuyW]

Do a search here for "Overturf" case.
.

[donstarr]

Since when?

In the past, that part of the PC has always been taken to allow CCW in the home or place of business.

Has something changed?

When discussing "Have" vs. "Carry" in the context of private property, there's some distinction between what's a "public space" and what is not.

Your front yard is likely considered a "public space". Your bedroom probably is not.

[nodeone]

The other consideration from 12031 would be what parts of the Business property are not considered a "public place." Loaded carry in a non-"public place" is not illegal according to 12031. So long as Employee constrained his/her loaded carry to clearly private portions of the business, this appears to be legal.

[Flopper]

When discussing "Have" vs. "Carry" in the context of private property, there's some distinction between what's a "public space" and what is not.

Your front yard is likely considered a "public space". Your bedroom probably is not.

Please re-read my post. It is about CCW'ing a gun IN the HOME and IN the place of business.

Those are not public places and have no bearing on this question.

[donstarr]

Please re-read my post. It is about CCW'ing a gun IN the HOME and IN the place of business.

Those are not public places and have no bearing on this question.

True. As long as you include the preposition "IN", you're OK.

However, if we want to address the O.P.'s question, and if we don't make the [yet unfounded] presumption that the "school" and the "business" are in the same building, then the distinctions between "public space" vs. "not public space" and "have" vs. "carry" are important, and most certainly relate to the O.P.'s question.

For example, while it may be "OK" to CCW within the business' building and within the school's building[s], it might not be OK to "carry" a loaded firearm across a parking lot that may exist between the buildings. That parking lot might be a "public space".

[nodeone]

Especially in light of People v. Overturf and the "public place" interpretation, is the term "public place" ever defined in the PC or case law? I haven't been able to find anything.

[GrizzlyGuy]

Especially in light of People v. Overturf and the "public place" interpretation, is the term "public place" ever defined in the PC or case law? I haven't been able to find anything.

It shows up in various places in the penal code:

http://www.google.com/search?q=california+penal+code+%22As+used+in+this+ section%2C+public+place+means%22

Here is People v. Overturf ("carrying" <> "having"):

http://www.calccw.com/Forums/legal/539-people-v-overturf-carrying-private-property-outdoors.html

[donstarr]

Especially in light of People v. Overturf and the "public place" interpretation, is the term "public place" ever defined in the PC or case law? I haven't been able to find anything.

PC 12556(e) defines it (for that section, which generally prohibits the display of imitation firearms) as:
For purposes of this section, the term "public place" means an
area open to the public and includes streets, sidewalks, bridges,
alleys, plazas, parks, driveways, front yards, parking lots,
automobiles, whether moving or not, and buildings open to the general
public, including those that serve food or drink, or provide
entertainment, and the doorways and entrances to buildings or
dwellings, and shall include public schools and a public or private
college or university.


It's not defined specifically within PC 12031.

[GrizzlyGuy]

It's not defined specifically within PC 12031.

Yes, isn't that frustrating? That essentially gives the court free reign in trying to discern the legislature's intent. They may reach out to a similar or related statute to find a definition like the one you quoted, go with the plain English meaning from the dictionary, or do something else entirely. They did both of those first two things in Overturf to come up with "having" <> "carrying" and a 'harmonious' result. What they end up with may or may not be favorable to you.

[GuyW]

the distinctions between "public space" vs. "not public space" and "have" vs. "carry" are important, and most certainly relate to the O.P.'s question.



Not sure I'm reading you right, but for the "have-vs-carry" issue, the public place concept is not relevant.

.

[donstarr]

Not sure I'm reading you right, but for the "have-vs-carry" issue, the public place concept is not relevant..

Why not? I can "have" a loaded firearm on a "public place" portion of my property (e.g. my front yard), but I may only "carry" it within the non-public portions of that property.

Wasn't that the gist of Overturf? He was convicted of violating 12031(a) and was trying to invoke the exception described in 12031(f). It was ruled that the "having" permitted in 12031(f) and the "carrying" prohibited by 12031(a) are two different things and, since he was in a public place portion of the private property and there was no reasonable belief that the firearm was necessary for defense, he could not "carry".

(In the above, I use the subdivision lettering as described in the People v. Overturf decision here (http://www.calccw.com/Forums/legal/539-people-v-overturf-carrying-private-property-outdoors.html), though the lettering seems to have changed since then.)

[GuyW]

Why not? I can "have" a loaded firearm on a "public place" portion of my property (e.g. my front yard

No - a loaded gun in a public place violates 12031.


loaded gun....I may only "carry" it within the non-public portions of that property.


No, you may only "have" within the non-public place portions of the private property.

.

[donstarr]

I can "have" a loaded firearm on a "public place" portion of my property (e.g. my front yard
No - a loaded gun in a public place violates 12031.
If we're still talking about the public place portion of my private property (e.g. my front yard), it's only a violation of 12031 if I'm "carrying" it. This seems pretty obvious (and is not contradicted by Overturf), given that the only crime described in 12031 is in subsection (a): the act of carrying a loaded firearm on one's person, or in a vehicle, while in a public place.

Merely "having" a loaded firearm on private property is explicitly allowed by 12031(h):
Nothing in this section shall prevent any person engaged in
any lawful business, including a nonprofit organization, or any
officer, employee, or agent authorized by that person for lawful
purposes connected with that business, from having a loaded firearm
within the person's place of business, or any person in lawful
possession of private property from having a loaded firearm on that
property.
That subsection does not say "unless you're in a public place portion of that private property". It doesn't need to: again, (a) only describes the crime of "carrying", while (h) is only (and perhaps unnecessarily) explicitly permitting "having".

Overturf was nailed because he was "carrying" in a public place. He tried to use the "having" exception in [at the time] 12031(f), but the court explained a distinction between having and carrying. The court did not say that "having" was a crime (they explicitly said that the statute allows that conduct ("having") in [then] subsection (f)). The court said that before "carrying" would be permitted, there must be a reasonable fear of danger.

(The court also discussed 12025 and 12026, but does not mention the explicitly-allowed "carry" in 12026 - perhaps the statute did not contain that language at the time? If it didn't, then their discussion of 12025 and 12026 seems to be overridden by subsequent changes to 12026.)

loaded gun....I may only "carry" it within the non-public portions of that property.
No, you may only "have" within the non-public place portions of the private property.
According to what statute? Not PC 12025, given that 12026(a) explicitly allows "carrying":
Section 12025 shall not apply to or affect any citizen
of the United States or legal resident over the age of 18 years who
resides or is temporarily within this state, and who is not within
the excepted classes prescribed by Section 12021 or 12021.1 of this
code or Section 8100 or 8103 of the Welfare and Institutions Code,
who carries, either openly or concealed, anywhere within the citizen'
s or legal resident's place of residence, place of business, or on
private property owned or lawfully possessed by the citizen or legal
resident any pistol, revolver, or other firearm capable of being
concealed upon the person.

Here's how I've read 12025, 12026, and 12031. I don't see any disagreement with the Overturf decision (presuming that the 12026 language has changed since Overturf):

12025 generally prohibits the carrying of a concealed firearm.
12026 creates a specific exemption to 12025, permitting the carrying of any concealable firearm on my private property ("any" must include "loaded", absent any distinction between loaded and unloaded).
12031(a) generally prohibits the carrying of a loaded firearm in a public place.
For purposes of 12031, my front yard is a "public place".
12031(h) allows the having (ownership, possession, keeping, but not bearing) of a loaded firearm on my private property. Nothing in 12031(h) makes any distinction between the public and non-public portions of my private property.
Therefore, I can carry a loaded firearm within the non-public portions of my private property, and I can have a loaded firearm on the public place portions of my private property.

I don't see any language in 12025, 12026, 12031, or in the Overturf decision, that contradicts this.

[GuyW]

.....
12031(h) allows the having (ownership, possession, keeping, but not bearing) of a loaded firearm on my private property. Nothing in 12031(h) makes any distinction between the public and non-public portions of my private property.


Overturf did.


.....
Therefore, I can carry a loaded firearm within the non-public portions of my private property

? Overturf says h) says and means "have", not carry.


.....
can have a loaded firearm on the public place portions of my private property.


How are you going to get the loaded gun into / out of the public place without carrying it or handling it?




loaded gun....I may only "carry" it within the non-public portions of that property.

"No, you may only "have" within the non-public place portions of the private property."


According to what statute? Not PC 12025, given that 12026(a) explicitly allows "carrying":


12025 deals with concealment, not loaded.
.

[donstarr]

..... 12031(h) allows the having (ownership, possession, keeping, but not bearing) of a loaded firearm on my private property. Nothing in 12031(h) makes any distinction between the public and non-public portions of my private property.Overturf did.
Where?

(First, let's make sure we're talking about the same things... the subsection lettering in the Overturf text linked to below is not the same as the lettering that appears in the current version of the statute.)

From what I've read of Overturf (http://www.calccw.com/Forums/legal/539-people-v-overturf-carrying-private-property-outdoors.html), the court said that "carrying" is generally prohibited in a public place, but "having" is OK. When they said "having is OK" (referencing the then-lettered subsection (f)), they made no distinction between public and non-public places).

If you know otherwise, please provide a cite.

..... Therefore, I can carry a loaded firearm within the non-public portions of my private property? Overturf says h) says and means "have", not carry.
So what? 12031 only PROHIBITS carrying in a public place. Neither 12031 nor Overturf PROHIBIT carrying in a non-public place.

If you know otherwise, please provide a cite.

can have a loaded firearm on the public place portions of my private propertyHow are you going to get the loaded gun into / out of the public place without carrying it or handling it?
That's a logistical problem outside the scope of the statute.

[GuyW]

So what? 12031 only PROHIBITS carrying in a public place. Neither 12031 nor Overturf PROHIBIT carrying in a non-public place.

If you know otherwise, please provide a cite.


h) only specifically exempts "having" a loaded gun....that means that loaded carry is not specifically exempted ("legal"), and logically (winning argument) that loaded carry is not legal.

Secondly, Overturf says, "His argument continues: "... To be an offense in the first place [under subdiv. (a)], the acts must occur in a 'public place or on a public street' ... If it were not at least open to the public, no exemption would be necessary for owners of private property, because there would be no offense at all."

In essence then, the argument is that the exemption under subdivision (f) must be coextensive with the liability created under subdivision (a). An overview of the entirety of section 12031 illustrates why we disagree with appellant's contention.

Thus, appellant's argument that the language of subdivision (f) must be coextensive with the liability created in subdivision (a) is not well taken."

Now, if you want to defend yourself against that charge, have at it. Readers can make up their own minds.



h) Nothing in this section shall prevent any person engaged in
any lawful business, including a nonprofit organization, or any
officer, employee, or agent authorized by that person for lawful
purposes connected with that business, from having a loaded firearm
within the person's place of business, or any person in lawful
possession of private property from having a loaded firearm on that
property.

[donstarr]

h) only specifically exempts "having" a loaded gun....that means that loaded carry is not specifically exempted (ie legal), and logically (winning argument) that loaded carry is not legal.
12031(h) exempts "having" a loaded firearm on your private property.

Again... so what? 12031(a) only prohibits carrying a loaded firearm in a public place.

12031(a) does not prohibit anything else. It certainly does not prohibit carrying a loaded firearm in non-public portions of my private property.

Now, if you want to defend yourself against that charge, have at it. Readers can make up their own minds.
What charge? Carrying a loaded firearm in the non-public portions of my private property? Show me a statute (or the text of a court opinion interpreting a statute) that says such an action is illegal, and then I'll worry about defending myself against it.

[GuyW]

Where?
.....If you know otherwise, please provide a cite.


Overturf specifically LOST on your exact argument:

Overturf says, "His argument continues: "... To be an offense in the first place [under subdiv. (a)], the acts must occur in a 'public place or on a public street' ... If it were not at least open to the public, no exemption would be necessary for owners of private property, because there would be no offense at all."

In essence then, the argument is that the exemption under subdivision (f) must be coextensive with the liability created under subdivision (a). An overview of the entirety of section 12031 illustrates why we disagree with appellant's contention.

.....Thus, appellant's argument that the language of subdivision (f) must be coextensive with the liability created in subdivision (a) is not well taken."

[GuyW]

"How are you going to get the loaded gun into / out of the public place without carrying it or handling it?"


That's a logistical problem outside the scope of the statute.

No, its not. Cops can arrest for acts NOT committed within their presence. The Judge (I'm speculating as a non-lawyer) will ask "How did the loaded gun get there?"

Then you lose.

.

[donstarr]

Overturf was convicted of a violation of 12031(a): carrying a loaded firearm in a public place. The court rejected his argument that [the then-lettered] 12031(f) provided an exception, since the "having" allowed by (f) is not the same as the "carrying" prohibited by (a).

I have never said that carrying a loaded firearm in a public place is OK.

If Overturf had not been carrying, there would have been no violation of 12031(a).

[donstarr]

"How are you going to get the loaded gun into / out of the public place without carrying it or handling it?"



No, its not. Cops can arrest for acts NOT committed within their presence. The Judge (I'm speculating as a non-lawyer) will ask "How did the loaded gun get there?"

Then you lose.

.

And I'd respond: I threw it out there from within the non-public part of my private property. See that window up there? Here's the video of me doing it. I never "carried" it in a public place.

I must wonder why you are even addressing this point, since it's irrelevant in your view (can neither have nor carry in a public place).

[Turo]

"How are you going to get the loaded gun into / out of the public place without carrying it or handling it?"

So, assuming Employee properly transported the firearm unloaded in a locked container to/from his place of business, and then strapped up once at work...
Answered in the OP.

[donstarr]

Answered in the OP.

GuyW does have a point: How do you "have" the loaded firearm in a public place (which I believe is legal, as it's not prohibited by statute or court opinion) without somehow "carrying" it within that place (which I think we all agree is not legal, per 12031(a))?

If the O.P. leaves the confines of the business' non-public place, crosses a public place, and then enters the school's private place, while carrying a loaded firearm, he's in violation of 12031(a). Specifically, he carried a loaded firearm in a public place.

The O.P. has a few options for avoiding a violation of 12031(a):
1. somehow transport his loaded firearm across the public place without carrying it (e.g. throw it, tie a string to it and drag it across after he crosses the public place, drive it across in an RC vehicle while he remains within the non-public place)
2. unload the firearm (and, perhaps, place it inside a locked container)
3. find a route between the non-public places that never crosses a public place (might be impossible if we're talking about two buildings separated by a parking lot)

[GuyW]

What charge? Carrying a loaded firearm in the non-public portions of my private property? Show me a statute (or the text of a court opinion interpreting a statute) that says such an action is illegal, and then I'll worry about defending myself against it.

h) only specifically exempts "having" a loaded gun....that means that loaded carry is not specifically exempted ("legal"), and logically (winning argument) that loaded carry is not legal (the legislature could have legalized loaded carry if it wanted to...).
.

[donstarr]

What charge? Carrying a loaded firearm in the non-public portions of my private property? Show me a statute (or the text of a court opinion interpreting a statute) that says such an action is illegal, and then I'll worry about defending myself against it.h) only specifically exempts "having" a loaded gun....that means that loaded carry is not specifically exempted ("legal"), and logically (winning argument) that loaded carry is not legal (the legislature could have legalized loaded carry if it wanted to...).
.
Let's back up a second...

Before "exemptions" are important, there must be a "crime" for which there can be an exception. Agreed?

I'll repeat myself: Please show me a statute (or the text of a court opinion interpreting a statute) that says carrying a loaded firearm in the non-public portions of my private property is illegal.

I don't think you can do it. 12031 only prohibits carrying loaded firearms in public places. 12031(h) allows one to have a loaded firearm on one's private property. 12026 specifically allows one to carry any concealable firearm on one's private property (subject to 12031).

[GuyW]

Let's back up a second...

Before "exemptions" are important, there must be a "crime" for which there can be an exception. Agreed?


No.

Overturf.

Post #23.

Why did the Court specifically say that the exemptions did not have to be "coextensive with the liability created under subdivision (a)"?

Why did the Court specifically shoot down Overturf's argument?

"His argument continues: "... To be an offense in the first place [under subdiv. (a)], the acts must occur in a 'public place or on a public street' ... If it were not at least open to the public, no exemption would be necessary for owners of private property, because there would be no offense at all."

The Court already said his argument and your argument is wrong.

I'm not saying I like it.....

.

[donstarr]

No.

Overturf.

Post #23.

Why did the Court specifically say that the exemptions did not have to be "coextensive with the liability created under subdivision (a)"?

Why did the Court specifically shoot down Overturf's argument?

The court shot down Overturf because he was carrying in a public place, the specific action for which he was convicted. He tried to use the "having" defense, but the court made the distinction between having and carrying.

Overturf was not accused/convicted of "having" a loaded firearm in a public place. The court said such an action would've been OK:
when it refers to geographical areas where certain conduct is permitted -- "place of business" and "private property" in subdivision (f) and "place of residence including any temporary residence or campsight" in subdivision (j), the statute states that nothing in the section shall prevent any person from having a loaded weapon.
...
Under our reading of the statute, it is proper [64 Cal.App.3d Supp. 7] for a person to own, possess or keep a weapon at his place of business or his residence or on his private property, as the case may be, but not to carry it about thereon unless it is necessary to use it under circumstances where use of a firearm is otherwise lawful. Subdivision (h) of section 12031 expressly says as much: "Nothing in this section is intended to preclude the carrying of any loaded firearm, under circumstances where it would otherwise be lawful, by a person who reasonably believes that the person or property of himself or another is in immediate danger and that the carrying of such weapon is necessary for the preservation of such person or property."

The Overturf court did not say that it was illegal to "have" a loaded firearm on one's private property (public place or not). They really were not even addressing that question. They were only addressing the question of whether the "having" exception in the then-lettered subsection (f) was applicable to Overturf's conviction of the (a) carrying violation.

I may have read some of your previous posts incorrectly. If so, ignore the rest of this paragraph. Please don't say that "they didn't say it was legal, so it must be illegal". Surely you know that this is not how our criminal justice system works. An act is only "illegal" if there is a statute or court opinion that says it's illegal; absent such, the act must be legal.

12031 only has one subsection that defines a criminal act: subsection (a). All other subsections are exemptions, penalties, etc. Subsection (a) says that it's illegal to carry a loaded firearm in a public place. Unloaded firearms, disassembled firearms, non-public places, etc. are not addressed in the subsection that defines the criminal act. If an action
a) does not occur in public place, or
b) does not involve "carrying", or
c) does not involve a loaded firearm,
then 12031(a) does not apply. The Overturf decision does not dispute this.

Look at the bolded sections of the quoted Overturf decision above. They explicitly said that it's OK to "have" (but not carry) a loaded firearm on one's private property. They did not say "but you can't 'have' it if you're in a public place".

[nodeone]

Thanks donstarr and everyone for the informative discourse. I think I'm going to start a new LUOPBSORCV movement (Loaded Unlocked Open Pulled By String Or Remote Controlled Vehicle) movement.